8.45 p.m.

Lord McIntosh of Haringey: My Lords, as in all debates on Private Members' Bills I should make it clear that the Opposition does not have a collective view and that I speak for myself personally.

What is curious about this debate is that although noble Lords have come to very different conclusions, they are really not in disagreement about the fundamental facts behind the issue. No one disagrees with our recognition of the horror of war crimes, particularly not the noble Lord, Lord Belhaven and Stenton, who wishes to extend the discussion beyond German war crimes. He is quite right to do that; but we are talking about German war crimes, and no one believes that the horror of those crimes should go unrecognised in any way.

7 Dec 1994 : Column 1004

I do not believe that anyone is departing from the principle that crimes of this sort should, if possible, in principle be pursued indefinitely, and from the principle that there should be no statute of limitations for crimes of this kind. If convictions can be achieved, the law should make that possible. That is why I believe that the War Crimes Act 1991 was thought to be unwise by a number of peopleI am not talking about this Housebut it was not thought to be wrong in principle. It was not thought to be wrong in principle to pursue war crimes. At the same time, I sense, even among those who support the War Crimes Act with most conviction, that they feel there will not be any convictions arising from it. That is certainly my view. I believe we are embarking on this exercise because we believe it is right to do so and not because we think that anyone will be convicted, and certainly not from any view that it is desirable to put someone aged 80 in prison for a period of, in theory, 25 years, or whatever length the life sentence may be in their case. Therefore we are not looking at the results; we are looking at the principle behind pursuing war crimes indefinitely.

I have to say that in those circumstances, with those options, I opt for pursuing the principle that we do not impose a statute of limitations on war crimes which we would not impose on any other crime. I support the view that the War Crimes Act 1991, however imprudent it may be in judicial terms, ought not to be overturned. Let us be clear that the Bill of the noble Lord, Lord Campbell of Alloway, would overturn the War Crimes Act. If it were carried, there would be no War Crimes Act.

I now turn to my final argument for disagreeing personally with this Bill, and for wishing that Clause 1, certainly, should not succeed. I have no legal expertise to enable me to assess the virtues of Clause 2 of the Bill. My final argument is as it was when I voted for the War Crimes Bill in 1991, and in the previous Session. This Bill was carried by an overwhelming majority on a free vote in the elected Chamber and I do not think it would be right for us to seek to overturn it now by a Private Member's Bill.

8.49 p.m.

Baroness Blatch: My Lords, my noble friend Lord Campbell will know from the Answer I gave to his Question on 28th November 1994 (at col. 473 of Hansard) that his Bill raises a most important point; indeed a fundamental question of principle. The title of the Bill explains that a purpose of the proposed legislation is to place a time bar on the institution of proceedings under the War Crimes Act 1991. The 1991 Act, as noble Lords will recall from the lengthy and detailed debates in Parliament during the passage of that legislation, is about acts of murder, manslaughter, or, in Scotland, culpable homicide which were committed as war crimes in Europe during the Second World War. Such offences are of the gravest kind it is possible to imagine. That, as the noble Lord, Lord McIntosh, said, is agreed all over the House, whatever side of the debate noble Lords are on. We do not have a time bar in the United Kingdom on bringing charges for murder, manslaughter or culpable homicide and that applies

7 Dec 1994 : Column 1005

irrespective of the circumstances in which such acts are committed. Clearly, therefore, the proposal in the Bill now before usthat, in effect, an exception should be made for such acts committed as violations of the laws and customs of warrequires more than usually careful attention.

Before I go to the detail of the Bill, I do not think that it will come amiss if I remind noble Lords briefly of the background to the War Crimes Act and of the Government's policy on war crimes in relation to the Act. Just over five years ago, the Report of the War Crimes Inquiry (Cm 744) was presented to Parliament. That inquiry was conducted by Sir Thomas Hetherington and Mr. William Chalmers at the request of my right honourable friend the then Home Secretary. The inquiry had been appointed following allegations that persons now living in the United Kingdom committed war crimes during the Second World War. The inquiry was asked, among other things, to obtain and examine relevant material relating to the allegations and to consider, in the light of the likely probative value in court proceedings of the relevant documentary material and the evidence of potential witnesses, whether the law of the United Kingdom should be amended in order to make it possible to prosecute such persons for war crimes.

The inquiry recommended that our courts should indeed be given jurisdiction over such crimes and that consideration should be given to the investigation of a number of cases and to possible prosecutions. The report of the inquiry was published in June 1989 and recommended action as soon as possible. Soon after, in March 1990, the Government introduced into Parliament the War Crimes Bill, now the War Crimes Act.

The Bill proposed, in line with the recommendations of the inquiry, that our courts should be given jurisdiction over murder, manslaughter and culpable homicide committed as violations of the laws and customs of war during the Second World War in Germany or German-held territory by people who are now British citizens or resident in the United Kingdom, the Channel Islands or the Isle of Man.

The Act makes clear that such people may include those who were not British at the material time. I emphasise this because our courts already had jurisdiction over murder, manslaughter and culpable homicide committed abroad by British nationals, by virtue of Section 9 of the Offences Against the Person Act 1861 and Section 6(1) of the Criminal Procedure (Scotland) Act 1975, which was a consolidating statute incorporating the corresponding provision in Section 29 of the Criminal Justice (Scotland) Act 1949. Indeed, our courts already had jurisdiction over grave breaches of the 1949 Geneva Conventions, including wilful killing and torture, wherever in the world the offence was committed and whatever the nationality of the offender, by virtue of the Geneva Conventions Act 1957. But that Act did not apply to grave breaches committed before its enactment.

I should also emphasise that the War Crimes Act did not create any new offences. Violations of the laws and customs of war have long been criminal according to

7 Dec 1994 : Column 1006

the general principles of law recognised by this country and all other members of the community of civilised nations. What the Act did was to make it possible to proceed against people who, at the time of the alleged war crimes, did not have British nationality and who would, therefore, have escaped liability for prosecution before the Act came into force.

The Bill was approved in another place on a free vote by a large majorityto be precise, by 273 votes to 60. Noble Lords will recall that the Bill was then denied a Second Reading in this House, in June 1990, by 207 votes to 74. The Government then reintroduced the Bill in identical form in another place in March 1991, where it was again approved on a free vote, and again by a large majorityby 254 votes to 88. It was subsequently denied once more a Second Reading by noble Lords, in April 1991, by 131 votes to 109. The Bill was enacted in May 1991 through operation of the Parliament Acts 1911 and 1949.

These details of the passage of the Act make clear that the legislation aroused strong feelings and passionsall of which have been illustrated again today. But the War Crimes Act is now law. The police and the prosecuting authorities do, therefore, have a clear remit and clear responsibilities to investigate and prosecute, as appropriate, where there is information that people now living in the United Kingdom committed war crimes in Europe during World War II. The Government stand fully behind the principle of the Act. The Government's declared policy is that those who committed most terrible crimes in Nazi-occupied Europe during the Second World War should not be able to use the privilege of residence in the United Kingdom to escape justice.

I should make clear that the Hetherington-Chalmers Inquiry was just thatan inquiry. It was not a criminal investigation. Investigations with a view to possible prosecutions were not necessarily appropriate or possible until the Act came into force. It came into effect on Royal Assent in May 1991. Investigations began later that month and it was understandable that the police and the prosecuting authorities should have wanted to proceed without delay. They had a formidable task ahead of them. The report of the Hetherington-Chalmers Inquiry included recommendations that investigations be undertaken in no less than 124 cases known to the inquiry team and, both before and after the coming into force of the Act, further information was received. The Government accordingly ensured that the police were resourced to undertake the necessary investigations. These were thought likely to take some time, not only because inquiries had in some cases to be made far away in unfamiliar territory, such as in parts of the former Soviet Union, but also because the events to be investigated took place a long time ago. But there was a clear expectation when the Act came into effect that information that war crimes had been committed should be acted on. As I said in response to my noble friend's Question on 28th November, there is no statutory time bar for laying charges of murder, manslaughter or culpable homicide in the United Kingdom and this applies no less where such acts are committed as war crimes.

7 Dec 1994 : Column 1007

Since May 1991, the Metropolitan Police War Crimes Unit has investigated 369 cases in England and Wales. Of these, a further 112 people who were investigated are now dead. Further to my Answer last week to my noble friend Lord Campbell of Alloway, I understand that 23 people are now being investigated, of whom nine are being considered for prosecution by the Crown Prosecution Service. That leaves 234 cases which have been dropped.

There are no investigations at present in Scotland or Northern Ireland. I cannot, of course, say what decisions will be taken regarding prosecutions or when decisions will be reached. Such matters are for the independent consideration of the Director of Public Prosecutions and the Attorney-General. But the figures clearly show that substantial progress has been made with the investigations.

It is against that background that I turn to the detail of the Bill put forward by my noble friend, Lord Campbell of Alloway. The Bill has two substantive clauses. The first clause provides that no prosecutions shall be instituted for offences in relation to the War Crimes Act 1991 with effect from the coming into force of the Bill, if enacted. Such a provision, if it were passed into law, would render the War Crimes Act ineffective. The clause would be tantamount to repeal of the 1991 Act and would, therefore, mean that people who did not have British nationality at the material time would again be immune from prosecution.

Parliament did not intend at the time the War Crimes Act was enacted that the police and prosecuting authorities should have a prescribed period of time in which to undertake investigations into war crimes and bring charges as appropriate. That point was well made by the noble and learned Lord, Lord Archer. The police and prosecuting authorities were enabled to see their work through to a conclusion, and, as I said, they have already made substantial progress.

But in the context of Clause 1, I must return again to the point of principle to which I have already alluded. I question whether Parliament would ever wish seriously to contemplate a time bar on institution of proceedings for such serious offences as murder, manslaughter and culpable homicide. To do so would be viewed with the utmost concern and alarm. Clause 1 of the Bill does not, of course, propose introduction of a time bar for such acts generally but is nonetheless dangerous in that its effect would be to make an exception for people who did not have British nationality and committed uniquely horrible acts against humanity in Nazi-occupied Europe.

Clause 2 of my noble friend's Bill would confer jurisdiction on the Criminal Division of the Court of Appeal to consider appeals against refusals by the Crown Court to dismiss charges, on grounds of delay or abuse of process, by persons indicted for crimes by virtue of the War Crimes Act 1991. The function of the Criminal Division of the Court of Appeal is to hear appeals against convictions after trial. It is not to determine questions of jurisdiction during trial. That is not to say that where a person has been indicted, whether or not on charges in relation to the 1991 Act, he cannot challenge the indictment. He can, by applying for the proceedings to be stayed on the ground of abuse

7 Dec 1994 : Column 1008

of process, including delay. If such an application were refused, there would be the opportunity to seek judicial review of that decision in the High Court. Like Clause 1, therefore, Clause 2 proposes that in war crimes matters we depart from general criminal law and procedure. Both clauses, therefore, if enacted, would set precedents whose effects would be far-reaching.

My noble friend Lord Campbell said that he aimed, through Clause 2, to put England and Wales on a par with Scotland. But I have to say to him that the different legal systems make such comparisons rather misleading. In particular, Scotland does not have the same system of judicial review as we have in this country.

I think I can fairly say that this Bill is not necessary to remove any possible injustice which might be thought to arise from operation of the War Crimes Act 1991. A prosecution will not be brought on a bare prima facie case. Rather, the test will be whether there is a realistic prospect of conviction. Furthermore, proceedings by virtue of the War Crimes Act may be instituted in this country only with the consent of the Attorney-General. If proceedings are instituted, then, as I explained, the Crown Court has inherent jurisdiction to stay those proceedings on grounds of abuse of process, including delay. But we have to think also of the enormity of war crimes and of those who suffered at the hands of the perpetrators of such crimes. The passage of time and the difficulties in investigating these crimes do not diminish the wrong that was done nor the need, now that the 1991 Act has been enacted, to investigate the evidence as in any other case of murder or manslaughter.

My noble friend Lord Dacre challenged claims that Parliament had agreed. Each time I mentioned the War Crimes Act I referred to it as having been passed by Parliament. It is, of course, true that the House of Commons voted overwhelmingly for it, as I said. But the Parliament Act is a proper part of our process. It was invoked and was accepted, and that ought to be an end to it. I believe that technically one can state that Parliament has had its say.

The question was also asked: could not the money be better spent or put to better use? I have to refer to the overwhelming commitment by the House of Commons and the invoking of the Parliament Act, including the provision of the necessary money for the war crimes legislation. The question of costs in bringing criminal procedures has to be weighed against the gravity of the offences alleged. There can be few, if any, graver allegations than those being dealt with under the War Crimes Act.

The protracted and complicated nature of the inquiry was known to Parliament when the Act was passed. It was also recognised that officers would have to visit scenes of crimes and witnesses in many different countries. It was known that it would be expensive and all matters were reflected in the budget that was set at that time. The same considerations apply to the Crown Prosecution Service which, of course, is the responsibility of my right honourable friend the Attorney-General.

7 Dec 1994 : Column 1009

The noble Earl, Lord Attlee asked whether I could tell him the age of the youngest person under investigation. I am afraid that I am not able to give him that information but I shall write to him if it should become available to me.

My noble friend Lady Elles asked whether there was any common reason for decisions not to prosecute. There are no common reasons for decisions not to prosecute which can be identified. In some cases, there was a lack of credible eye-witness evidence of the alleged crimes; in others, no allegation of murder or manslaughter was made. In some cases, death has intervened. Each case currently under investigation will be considered on its merits.

This is a Private Member's Bill and the Government would not therefore propose to vote against it. But, as I have explained, the provisions of the Bill would have profound implications which the Government do not feel able to accept.